Browning v. City of Waycross
| Decision Date | 02 April 1912 |
| Docket Number | 3,983. |
| Citation | 74 S.E. 564,11 Ga.App. 46 |
| Parties | BROWNING v. CITY OF WAYCROSS. |
| Court | Georgia Court of Appeals |
Rehearing Denied April 16, 1912.
Syllabus by the Court.
The interstate commerce clause of the federal Constitution does not prohibit a state or one of its subordinate political subdivisions from imposing a reasonable occupation tax upon the business of "putting up or erecting lightning rods," and a person engaged in such a business is subject to the tax, notwithstanding it appears that the lightning rods were sold by him as agent for a nonresident manufacturer, under a contract which required the seller to install the lightning rods. This is true, without reference to whether the lightning rods are shipped from the foreign state directly to the purchaser, or are shipped as a part of a common mass with other property of the same character to the agent of the seller and distributed by him to the purchaser. Such a tax affects only incidentally, and does not impose an unlawful burden upon, interstate commerce.
Error from Superior Court, Ware County; T. A. Parker, Judge.
E. A Browning was convicted of violating an ordinance of the City of Waycross, and brings error. Affirmed.
J. L Sweat, for plaintiff in error.
C. L Redding and Wilson, Bennett & Lambdin, for defendant in error.
The plaintiff in error was convicted of the violation of an ordinance of the city of Waycross, and excepts to the overruling of his certiorari.
The ordinance imposed an occupation tax of $25 "upon lightning rod agents or dealers engaged in the business of putting up or erecting lightning rods." The plaintiff in error was employed as agent of the St. Louis Lightning Rod Company, a nonresident corporation, to solicit and sell lightning rods. During the year 1911 he, together with another agent of that company, solicited a large number of orders in the city of Waycross. The manner in which the business was carried on was that the purchaser would deliver to the soliciting agent a written order, addressed to the agent, for a certain quantity and quality of lightning rods and at a certain price. In the written order there was nothing said directly in reference to the installation of the lightning rods bought; but it was understood that this was to be done by the agent taking the order, or some other agent of the seller. It was the practice that the orders, when taken, were forwarded to the residence of the seller, and when a sufficient quantity to make up a car load had been sold, as shown by these orders, the car would be shipped to Waycross, consigned to the St. Louis Lightning Rod Company. Upon arrival of the car in Waycross, the agent who was to make delivery would take the lightning rods from the car, load them on a wagon, and deliver them in this way from house to house to the purchasers. There was no mark on any particular set of lightning rods to indicate that they were designed for any particular individual. They were received in bulk by the agent, and from the car of rods the various orders would be filled according to the specifications set out in each. It required special skill to put the rods together and install them on the house, but this was done without any extra charge over and above the amount stated in the order. When the rods were installed on the house, the amount of each order would be collected in cash or notes by the agent and transmitted to his employer in St. Louis. The plaintiff in error had not paid the occupation tax required by the ordinance for the year 1911, nor had any one else paid it for him.
The only point presented for our consideration is whether the ordinance of the city of Waycross is void, as being in conflict with the interstate commerce clause of the federal Constitution. In 1899, upon the authority of the decisions of the Supreme Court of the United States, as they were then understood and construed, the Supreme Court of this state held that the commerce clause of the federal Constitution does not prevent a state from imposing for revenue purposes a license tax upon agent of principals residing in other states, who make executory contracts for the sale of goods and who, when the goods are shipped into this state, receive them in bulk, break the original packages in which they are contained, and distribute them among the customers. Racine Iron Co. v. McCommons, 111 Ga. 536, 36 S.E. 866, 51 L.R.A. 134. That decision was based upon the idea that the goods having been shipped into this state in bulk to the agent, who distributed them among the purchasers in compliance with their respective contracts, the state had complete authority to impose a tax upon the business of the agent, since the goods were not actually delivered to the purchaser until after they became a part of the mass of property in this state. After the rendition of that decision, and in 1903, the Supreme Court of the United States had under consideration a case from North Carolina involving practically the identical facts of the McCommons Case. Caldwell v. North Carolina, 187 U.S. 622, 23 S.Ct. 229, 47 L.Ed. 336. In that case it appeared that the agent took orders for portraits to be shipped into North Carolina by a Chicago corporation, that the orders were taken and forwarded to this corporation, and when a sufficient number had accumulated the corporation would load the portraits into a car and ship them by freight to North Carolina, consigned to the order of the corporation itself, or to its agent. Upon arrival of the car, the agent would take charge of it, put the portraits in the frames to which they belonged, respectively, and deliver them to the purchasers. The Supreme Court of North Carolina held that the ordinance was a valid exercise of the taxing power of the city of Greensboro, for the reason that the portraits were shipped to the order of the seller, and the agent of the seller opened the boxes in which the portraits were shipped, took out the portraits and frames, assorted them and put them together, and delivered them to the purchasers in the city of Greensboro. This was thought by the Supreme Court of North Carolina to be the distinction between the case then being dealt with and the decision in the case of Brennan v. Titusville, 153 U.S. 289, 14 S.Ct. 829, 38 L.Ed. 719. This distinction, however, was summarily disposed of by the Supreme Court of the United States on review, and it was directly held in a unanimous decision that the ordinance in question operated as an unlawful burden on interstate commerce and was for this reason void. Similar cases again reached the Supreme Court of Georgia after the rendition of the decision in Caldwell v. North Carolina. The former ruling of our Supreme Court was...
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